IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

Criminal Case No. HAC 42 of 2017

THE STATE

V

TEVITA RASUAKI

Counsels:	Mrs. A. Vavadakua for the State
		Mr. H. Robinson for the Accused

Date of Trial: 		21 August 2018
Date of Summing Up: 	22 August 2018

SUMMING UP

1.	Ladies and Sir,

2.	The time has now come for me to sum up this case for you. My 	duty in summing up is two fold. I will direct you on the 	applicable law and you must accept what I say about the law. I 	will sum up the evidence for you but you don’t have to accept 	what I say about the evidence or the facts. That is because you 	are my advisors and you will assess the evidence and after 	applying the law to that evidence you will tell me in your 	opinion whether the accused is guilty or not of rape and 	criminal intimidation.  I don’t have to follow your opinions, but I 	will give them great weight when I come to make the final 	judgment of the Court.
3.	You must judge this case solely on the evidence that has been 	placed before you in this Courtroom and on nothing else.

4.	Evidence in any case consists of the oral testimony of all 	witnesses, together with all documents, and in this case that is 	the evidence of three prosecution witnesses, two defence 	witnesses and the medical report. You may accept the evidence 	or reject it. You may also accept part of a witness’ evidence or 	part of a document and reject the rest. It is entirely a matter for 	you. You will not consider as evidence anything that someone 	has told you outside or anything that you may have read or 	seen in the media. You may have heard me in the course of the 	trial express an opinion or make a remark about the evidence. 	You must ignore that completely and come to your own views 	about the evidence placed before you.

5.	Counsel addressed you this morning on how you should find 	the case. That is their duty to the Court. You do not have to 	accept what Counsel tells you, unless you agree with them. You 	will make up your own minds on the evidence. 

6.	Please do not be influenced by any sympathy or prejudice you 	may feel towards anybody connected with the trial, it is your 	duty to come to your opinions solely on the facts as you find 	them in accordance with my directions on the law.

7.	I repeat what you have been told several times about the burden 	and standard on the prosecution. You hear this often because it 	is very important. The State must prove to you so that you are 	sure that the accused is guilty of these crimes. That is a burden 	on the State throughout the trial and to be sure means that 	there can be no reasonable doubt in your minds. 

8.	As you are aware, the accused has been charged with rape. For 	the purposes of this trial the Law says that rape is committed 	when a man penetrates a woman’s vagina with his finger or 	fingers without her consent. 

9.	Therefore before you can find Tevita guilty you must be sure 	that it was him and that he had used a finger or fingers to 	penetrate Usenia’s vagina that day and it was without her 	consent. 

10.	The second count is one of Criminal intimidation. To find the 	accused guilty of that crime you must find so that you are sure 	that it was Tevita and he did threaten to injure Usenia, or 	somebody else, with a knife intending to cause alarm to her.

11.	Now because there are two counts I direct you to look at them 	separately. Just because you think he might be guilty of one 	count does not necessarily mean he is guilty of the second 	count. The evidence on each is different and you will make 	independent decisions on each. 

12.	Ladies and Sir, that is all I wish to say about the law at this 	time. I know you only heard the evidence yesterday, but it is my 	duty to remind you of it just before you are sent out to 	deliberate. Remember that you are judges of the facts and if I 	express an opinion on the facts you can ignore what I say if you 	disagree and accept what I say if you agree.

13.	The first prosecution witness was the young lady Usenia, who 	lives with her mother in the village. On the 20th April 2017 she 	was at home looking after a small child and was about to have 	her bath when the accused, whom she calls “Te”, came and saw 	the child. He came inside and took off all of his clothes. He 	touched her breast(s). He told her to lie down and he inserted 	two fingers into her vagina. The child was crying and Te told 	her to go and feed the child and then come back to him. Usenia 	then went to the school compound to tell her mother what had 	happened. The mother came back and Te went away on the 	1pm bus. 

14.	She further elaborated that he was holding a knife when he 	came and he told her that if she shouted he would stab the 	child. She was frightened. She described the layout of her home, 	and you may or may not find that helpful. When she saw him 	trying to get close to the baby with the knife, she pinched the 	baby to make her cry. She did that so that she could then go to 	her mother. 

15.	When Defence Counsel cross-examined the witness it was 	pointed out that there were a few discrepancies between the 	evidence she gave in Court and the things she told the Police 	the day after the incident. 

16.	These assessors, brings into effect the law relating to previous 	inconsistent statements. Let me explain it to you. 

17.	The law says that whatever a witness says in Court is the 	definitive evidence. In some cases you might think that the 	differences are unimportant and you must decide whether the 	previous statement is in fact inconsistent. For example when 	you are deciding on the question of whether Te raped Usenia or 	not, does it matter whether the little child was a boy or a girl? 	Does it matter how old the child is? Does it matter whether he 	threatened to stab her or stab the baby? In either case it is 	criminal intimidation. You might think that some differences are 	important. If so, while accepting the evidence in Court as the 	proper evidence you might think that the very different version 	given to Police before would make the evidence of the witness 	unreliable and you might not give it much weight. It is all a 	matter for you. 

18.	The second witness was the mother of Usenia. She remembers 	that on the 20th April 2017 she was working at the school 	compound when Usenia came to her and told her what Te had 	done, that he had touched her breast and put his fingers into 	her vagina. She was crying and she was angry while relating the 	incident. The Turaga-ni-Koro told her to report it to the Police, 	which she did. 

19.	Now let me direct you what the effect of this evidence is. It is 	what is called recent complaint evidence, that is a report to 	somebody very soon after the events complained of.

20.	This is not evidence that confirms that the abuse related 	actually occurred but it is evidence for you to consider which 	might assist you to decide whether Usenia is telling the truth or 	not. The prosecution says that it shows consistency between her 	complaint and the reporting of it; the defence says that it is yet 	more proof of lies. It is yet another matter for you to consider. 

21.	In our law it is not necessary for you to look for evidence apart 	from what Usenia says. You can judge the case solely on what 	Usenia tells us in her evidence. 

22.	The third witness for the prosecution was the doctor who 	examined Usenia the next day at Tukavesi Health Centre. He 	said that she presented to him scared and sad. He conducted a 	complete examination on her and found her physically fit apart 	from her genital area. She had a small abrasion on her labia 	minor and noted that her hymen was not intact. He ignored that 	hymen issue because the patient told him that she had had a 	previous sexual history but he said that the abrasion could have 	been from penetration of her vagina within the previous 24 to 	48 hours. He told us that it could have been caused by a 	finger(s) but admitted in cross-examination that it could also 	have been caused by something else. 

23.	Now that was the end of the prosecution case. You heard me 	explain the charges again to the accused and you heard me tell 	him what his rights are in defence. He could give evidence and 	be cross-examined or he could remain silent and say that that 	the prosecution had not proved the case against him beyond 	reasonable doubt. Either way he could call witnesses.

24.	As you know he elected to give evidence. Now I must direct you 	again that the accused does not have to prove anything to us. 	The burden of proof always remains on the State. Even if you 	don’t believe his evidence it does not make him guilty if the 	State hasn’t made you sure that he raped Usenia with his 	fingers.

25.	Tevita told us that he is a farmer and that he knows Usenia 	because he is related to her. On the 20th April 2017 he went to 	Kanakana where she lives, to look for a horse to use on his 	farm. His friend Paula helped him to find the horse. Apart from 	looking for the horse he was in Jamesa’s house “telling stories” 	until 1pm when he got the bus home. 

26.	He never went inside Usenia’s house, he never threatened her 	with a knife. He didn’t threaten the baby with a knife. He didn’t 	take his clothes off, if he had the men working on the house 	next door would have seen him. Usenia is telling lies. 
27.	The accused called as his witness Jamesa Tuvu.  He told us 	that the accused came to the village that day to look for a horse.  	He came for breakfast and then went out looking. He came 	back and said he could not find the horse he wanted and asked 	the witness to go with him to look again. They went together 	but then the bus came and the accused took the bus home.

28.	Well ladies and Sir, you might think that his evidence is not 	very helpful.  First, there was a period that the accused was 	away and that he cannot account for.  Secondly, the accused 	said he was with Paula that day but Jamesa said that the 	accused was alone.

29.	Well Ladies and Sir, that was the end of the Defence case and it 	is all evidence for you to consider. Bear in mind that the 	accused doesn’t have to prove anything, but what he does say 	could make you doubt the prosecution case. 

30.	That is all I have to say in this Summing up. Your possible 	opinions when you return are guilty or not guilty. It would be 	better if you can be all agreed but if you cannot, then I will take 	your individual opinions. Please let a Member of my staff know 	when you are ready and I will reconvene the Court. 

31.	Just before you leave I will ask Counsel if there is anything they 	may wish me to amend or add to these directions. 

32.	Counsel?

	  	P. K. Madigan
      	     Judge
At Labasa
22 August 2018